4 F. 487 -

4 F1d 487

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Case Text

CHESTER V. LIFJil .lSS'N Oll'AMERIOA.

487

This long quotation has been given that the theory of defendant on this question may be understood. Concisely stated, it is that when it was inconvenient for railroads to do express business, express companies were fostered and encouraged by them; but that 1;lOW, as the business had become profitable, and railroads could conduct it conveniently, and as no railway could allow two express companies on its line, the railroad companies should monopolize the entire business 'on their lines, and, as some great lines had already done, dispense with the express companies and do the business themselves. Now, if in the field of fair competition the railroad has the advantages over express companies which are so forcibly stated by the general manager of defendant, and if, as he states, express companies had been encouraged and fostered by railroads until' it had become a profitable business, making large returns to their stockholders, it would be unjust and most inequitable to allow railroad companies now, by unfair preferences, or the assumption of superior power and to drive them from their lines that the railroads might do the business. Under the views I have taken of this case a preliminary injunction must be awarded, continuing, until the further order or decree of the court, the provisions of the restraining order heretofore granted in the cause.

CHESTER

v.

THE LIFE ASS'N OF AMERICA

and others.

(Oircuit Oourt. W. D. Tennessee.

--,1880.)

EQUITY PRACTICE-NEW PARTms-REVIVOR.-A bill having become defective by the dissolution of a defendant corporation, it is proper practice for the plaintiff to bring in the statutory assignee by a supplemental bill in the nature of a bill of revivor.

SAME - PETITION TO BEcmfE .A DEFENDANT.-The assignee of an insolvent and dissolved defendant corporation cannot, upon his own petition, become a defendant against the consent of the plaintiff, where his only interest is to effect a dissolution of an injunction. ,

488
8.

FEDERAL REPORTER.

INJUNCTI9N-WHERE THE

DEFENDANT COHPOHATION BEcmms ExDISSOLVED.-When a defendant corporation becomes dissolved, its assignee may, upon motion or petition, oMain a rule to have an injunction against it dissolved, unless the plaintifI sh'lll, within a specified time, revive the suit against the assignee; but he cannot by petition become a defendant, and procecd to hearing on the record, without the plaintiff's consent. He has no such interest as authorizes him to revive and continue the suit, where a dissolution of the injunction is the only object of the proposed revivor by him.
AND EXCEPTIONs.-The general rule, that no one will be admitted as a party against the consent of the plaintiff, has certain exceptions, which are stated, and their application to the caS8 in judgment denied.

4.

EQUITY PRACTICE-NEW PARTIES-APPLICATION TO BECOME-RULE

Wright, Folkes Wright, for petitioner. Heiskell et Heiskell, for plaintiff.
'HAMMOND, D. J. This is a bill for the rescission of a contract or for an account, as the rigqt may appear, and the defendant company is under an injunction restraining it from selling, under a deed of trust, the lands of the plaintiff to· secure a debt due the company. The parties being at issue and the cause ready for trial, one William S. Relfe presents his petition, stating that the insurance oompany, having become insolvent, has been, by a decree of the proper court in :Missouri, dissolved; and that he, by operation of law and the said decree, has become invested with the right to all its assets, including the debt due by the plaintiff, and has been charged with the duty of collecting them. He asks to be made a party defendant, and to proceed to trial without delay, so that the injunction may be dissolved and he allowed to enforce the trust. The plaintiff, on the other hand, presents a supplemental bill setting up the same facts, and asks leave to file it against Relfe, and thereby to revive the suit, and resists the application of the petitioner to become a defendant on his own motion. The loose practice condemned by Chancellor Cooper in the case of Stretch v. Stretch, 2 Tenn. Ch. 140, and supposed by him not to be authorized by the Tennessee Code or the supreme court, has oreated a very general confusion on the subject of bringing in new parties to a chancery suit in the

CHESTER t1. LIFE ASS'N Oll' AMERICA.

'89'

state courts, from which this court is not entirely exempt, because of the difficulty experienced of abandoning a habit of practice acquired in one court when coming into the 'other. The learned counsel for the petitioner here insists that this , application is supported by the English cases, and frequent recognitions by the federal courts, and I have taken this occasion to examine the subject with a view to ascertain the proper practice. There can be no doubt whatever that Belfe's interest is of that character which renders it necessary for the plaintiff to bring him in as a party, and that without his presence as a defendant the. suit could not proceed'. There has been a devolution of interest by operation of law, but he does not occupy the attitude of a purchaser pendente lite, to be brought in or not at the election of the plaintiff. He represents the company, as well as owns its title, and he alone, the company being dissolved, can account for it, if an account shall be necessary. The case comes, therefore, precisely within the category provided for by equity rule 57, and under all the authorities the plaintiff cannot proceed without a supplemental bill in the nature of a bill of revivor. Kennedy v. Georgia Bank, 8 How. 586, 610; Clarke v. !I1(£tthewson, 12 Pet. 164; Ju,3tice v. McBroom, 1 Lea, 555, at page 558; Northman v. Insurance Co. 1 Tenn. Oh. 317; St'retch v. Stretch, 2 Tenn. Oh. ]40; Steele v. Taylor, 1 Minn. 274; Slackv.Walcott, 3 Mason, 508; Anderson v. Railroad, 2 Woods, 628; 2 Danl. Oh. Pl'. (5th Ed.)c. 33, p. 1506 et seq. But the court has no power to compel the plaintiff to revive. He may file a new bill, if he choose, or never revive. Hemight, I take it, go to Missouri, and file his bill there against. Relfe. Thompson v. Hill, 5 Yerg. 418; Spence1' V. Wmy, 1 Vel'. 463; Anon. 3 Atk. 486. This would seem a sufficient reason for not allowing the· petitioner, against the consent of the plaintiff, to become a defendant to this suit, were it not manifest that he has an interest in ending this suit, at least, so far as to procure .. dissolution of the injnnction, which restrains him from realizing his debt by a sale of his security. This is, it seems to-

490

FEDERAL REPORTER.

me, all the he has in pressing a trial after the suit has become so defective that it can never proceed against him without a revivor: There are, undoubtedly, cases-generally, those where a decree has been rendered and there has subsequently been a change of parties-in which the defendant himself or his representative may revive a suit by supplemental bill in cases of strict revivor, or by original bill in the nature of a supplemental bill in other cases; but he cannot do this by petition or motion. Thompson v. Hill, supra; 2 Dan!. Ch. Pro (5th Ed.) 1539, and notes. But where the only interest of the representative is to dissolve an injunction, which is this case, he does not proceed by a bill to revive. 2 Danl. Oh. Pl'. 1539, at note 8. It is said he must proceed in the ordinary way to procnre a dissolution of the injunction, and I find that to be by motion for a rule that the injunction stand dissolved, unless the plaintiff shall within a short time, usually 12 days, file his supplemental bill or bill of revivor. Kerr, lnj. 633, and cases; 2 Danl. Oh. Pro (5th Ed.) 1539, note 7 and cases; ld. 1544, note 1 and cases; ld. 1679, note 5 and cases; Thmnpson V. Hill, and cases cited. This furnishes the defendant here a sufficient remedy to get rid of the injunction, and I have no doubt his petition could be entertained for that purpose; for whatever one may do by motion he may do by petition, and it is proper to file one wherever intricate facts are to be stated as a basis of the motion. 2 Danl. Oh. Pl'. 1592, 1603. But that is not the purpose for which this petition is offered, and if it were it would be dismissed, in the face of an application by the plaintiff to file his supplemental bill. Even where the defendant may file a supplemental bill preference will be given to the application of the plaintiff to file his supplemental bill. Oarow V. MOwatt, 1 Edw. Oh. 9. The case most relied on by the learned counsel for the petitioner is White V. Hall, 1 Russ. & My!. 332. But see Bazan v. Bolland, ld. 69. He also relies on Young v. Everest, ld. 426. In the first case the father, who was named as one of the executors in the will, was out of the jurisdictionwhen the bill was filed, and, it being a bill against the executors, he was

CHBSTER

LIF'B ASS'N OF AMERIOA.

491

allowed to become a party on his own application. In the other case the stranger to the record did not become a party, but appeared to protect his interest in the distribution of a fund in a case where, before decree, he might have become a quasi party by petition. Both of these cases fall within the exception mentioned by Mr. Justice Bradley in Anderson v. The Railroad,8upra; 2' Woods, 628, 630; Danl. Ch. Pro 540, note 1, and cases; ld. 153, and notes; ld" 281, and notes 79 ; ld. 287, note 2; ld. 1506 et seq. And Bee Barribeau v. Brant, 17 How. 43, 46; Ransom v. Davis, 18 How. 295. Mr. Chancellor Cooper says, in his note to Daniell, that "no such practice is known, in equity as making a person a defendant upon his own application, over the objection of the complainant." 2 Danl. 287, note 2. And in Stretch V. Stretch, supra, he mentions as the only exception the case of trustees and beneficiaries. Mr. Justice Bradley, in Anderson v. The Railroad, 8upra, adverts to other exceptions which he mentions, suchas scandal against a stranger, or where he is a purchaser pendente lite, where the applicants are creditors allowed to prove their debts, or they are persons belonging to a class for or against whom a suit is brought. I have examined a good many of the cases cited in the authorities already mentioned, and think that this case falls within none of these exceptions. I have already endeavored to show why Belfe cannot revive the suit as one upon whom the representation and title of the'defendaut company have devolved by law, and what his proper remedy is to dissolve the injunction -the only object he can have in a revivor in his own behalf. The exceptions may be divided into three classes, leaving out those where the stranger to the record may appear for scandal: First, where the person applying has been named in the bill as a party, and, not being served with process, comes within the jurisdiction and offers to become a party; second, where he represents a party whose interest has been transmitted by death or devolution by operation of law, and the case is one that requires him to be received as a party; third, where the bill has been filed for or against a class, in which case, if the petitioner belongs to the class. he may

492

FEDERAL REPORTER.

become an actual or quasi party, as may be necessary to protect his interest. Several cases are cited where a stranger, nbt within these exceptions, has been allowed, upon his own petition, to become a party; but it will be found, I think, that no objection was taken. Galveston v. Cowdrey, 11 Wall. 459; Ex parte Railroad Co. 95 U. S. 221. In this last case the stranger came in by petition, was made 'a defendant; and filed an answer and . a cross-bill. Pending the suit this defendant assigned its interest, and the qnestion involved was whether after the assignment the crossbill could prooeed in the name of the assignor, and it was held that it could. The court says that "an assignee pendente lite may, at his own election, come in bYl1ppropriate application and make. himself a party, so as t,o assume the burdens of litigation in his own name, or he may act in the name of his assignor." And in the Jenny Li'hd, 3 Blatch£. 513, the court says it is a common practice in admiralty and equity to allow persons interested in .the subject-matter to 'come in and protect their interests. I do not think these are against the positionsa.ssumed in this opinion. if it be remembered that in proceedings in rem the persons inter. ested in the res are all admitted, on ,the principle that they belong to a class for or against. whom the proceedings are taken. And, in ,the case of the railra:ad company, the court .did not discuss ..or have occasion to determine. whether the stranger who came in without objection had 8r right to come if objection had been made, nor whether the assignee pendente lite could have come in by petition. Othe,r cases have decided against the :t;ight of the stranger to come in by petition, where the question was made, as we have already seen. Coleman v. Martin, 6 Blatch£. 119; Drake v. Goodridge, Id. 151; Foster v. Deacon, 6 Madd. 44. The petition of Relfe will be dismissed, and the plaintiff has leave to file his supplemental bill.

Motion to set aside verdict, and for new trial. Morris « Pearsall, for plaintiff. John Chetwood, for defendant. BENEDICT, D.J. This is an action at law to recover oftha owners of the steam-ship Canada for the death of one. John Dwyer, who fell through the hatchway of that steamer, on the twentieth of October, 1878, and was killed. At the trial the court directed a verdict for the defendant. A motion to set aside the verdict and for anew trial has been made, and is now to be disposed of. The facts appearing at the trial are as follows: The de. ceased, on the moniing of October 30th, and while in th'e act of arranging the pipe of a grain elevator in the hatch, stepped upon '3,' section of the grating of the hatch, the section tilted under his weight, . and he fell through the hatchway to the orlop deck and was killed. The hatchway was about 12 feet long. The grating was constructed in sections, each section about two feet wide, and intended to fit in a groove when in position. No defect of construction or weakness of materials in the gra.ting is pretended. The section on which the deceased stepped did not break, but tilted under his weight, and solely because it was not properly placed in the groove where it was intended to fit. Had it been in its proper position it would have been abundantly strong to support the deceased without danger. Similar hatchways having similar gratings are a common feature in vessels of this class. They are a necessary feature in the deck of a ship, and their position in the ship is controlled by the necessity of the business.